(Blogger’s note: Back to help us untangle our often complex
legal system is Stan Glisson, a local Bremerton defense attorney.
You might remember his last column explaining whether a driver
flashing his headlights is a first amendment right. Here’s
Glisson’s take on two supreme court decisions this week that will
give criminal defendants far greater abilities to challenge
decisions in the prcoess known as ‘plea bargaining.’)
In
two brand new decisions, the US Supreme Court has dramatically
extended legal protection to criminal defendants in the plea
negotiation process. Historically, courts have protected defendants
against incompetent defense with the ‘ineffective assistance of
counsel’ standard. Basically, the accused person can be granted a
new trial when the lawyer’s level of skill at trial appears so
poor, or a strategic decision so difficult to justify, that that
the jury did not hear a reasonable defense.
Now, the Supreme Court has extended this protection to
apparently incompetent representation even on cases that don’t go
to trial. In Missouri v. Frye, the defendant was offered a
misdemeanor plea and 90 days in jail for what could have been a
felony driving offense. The lawyer did not tell the client the plea
offer, and it was eventually withdrawn. Later, the accused plead
guilty to the felony and received a sentence of three years in
prison. The high court decided that failure to advise the client of
the favorable plea offer was ineffective assistance, and has now
vacated the three year sentence.
For the Court, this is a huge departure and a bold change in the
law. The decision requires of the states an enormous undertaking;
find a practical way to monitor plea negotiations, previously
regarded as semi-confidential, for effective advocacy. The Court
recognizes that nationwide about 95% of criminal cases are
negotiated short of trial. The decision explains that to a large
extent “[plea negotiation] determines who goes to jail and for how
long. That is what plea bargaining is. It is not some adjunct to
the criminal justice system; it is the criminal justice system.” As
such, the criminal defendant is absolutely entitled to have
competent, diligent counsel at the negotiation stage, just like
they are at the trial stage. Defense counsel has a duty to
communicate potentially favorable plea offers to the defendant, and
the court now will have some obligation to monitor that
interaction.
Interesting that the Supreme Court made note of one common, and
deeply disturbing, phenomenon that occurs with plea negotiation.
“[Defendants] who do take their case to trial and lose receive
longer sentences than even Congress or the prosecutor might think
appropriate, because the longer sentences exist on the books
largely for bargaining purposes. This often results in individuals
who accept a plea bargain receiving shorter sentences than other
individuals who are less morally culpable but take a chance and go
to trial.” The Court does not suggest, as personally troubling as
this is, that the court should be involved in changing that
outcome. The key issue is whether the defendant was aware of his or
her plea options, and made a knowing and informed decision to go
forward to trial, understanding the risks that follow. The reality
that a less culpable defendant often receives the far harsher
sentence is a symptom of the plea negotiation process and
prosecutorial discretion, and will be upheld absent ineffective
representation.
In Washington, this idea is not new. In a 2005 case, a local
lawyer was suspended from practicing law after it was documented
that he failed to communicate a written 57 month plea offer to a
defendant. The case went to trial, the defendant was convicted, and
faced at least 221 months in prison. When the facts about the plea
negotiation process were revealed, the Superior Court withdrew the
convictions and the defendant was ultimately allowed to accept the
original 57 month offer.
So our courts have been willing to listen to the occasional
extreme case of ineffective plea negotiation representation. But
the US Supreme Court now appears to be requiring that courts be
prepared to examine that process in every criminal case. The
inquiry, the Court explains, becomes how to define the duty and
responsibilities of defense counsel in the plea bargain process.
This is inherently difficult, as “The art of negotiation is at
least as nuanced as the art of trial advocacy and it presents
questions farther removed from immediate judicial supervision.”
So how are the courts going to administer this extra
responsibility to ensure competence in negotiations? The Supreme
Court suggests plea negotiations in writing, perhaps filed in court
to show the history of the negotiation process. This is a major
practical challenge, but would protect prosecutors and courts from
frivolous motions based on unfavorable post-trial sentencings. For
example in 2010 nearly 10,000 misdemeanor cases were filed in
Kitsap County courts. In one local court, two public defenders
last year were assigned nearly 900 criminal cases to handle.
Despite growing obligations and legal expectations placed on public
defense attorneys, funding for those positions is routinely
insufficient. Frankly, it is not a popular place for elected
officials to suggest taxpayer money be spent, when prosecution and
law enforcement also need funding. In some respects, the court
systems, prosecutor’s offices, and public defenders are already
working at maximum capacity. But somehow, we will have to find a
way for courts to observe not only that defendants’ rights are
protected in court and at trial, but also in their lawyer’s
offices, on the phone or email, when plea discussions are going
on.
The added protection for defendants is undoubtedly the right
thing to do, and now it is the law. The accused person must have a
competent lawyer who communicates with them throughout the process.
A person accused of a crime is entitled to that at a bare minimum.
How we are going to monitor that will be the question our courts
wrestle with in the years to come.
Stan Glisson is an attorney in Bremerton with the
firm Glisson, Witt and Altman. Their firm mainly handles
DUI and misdemeanor defense, as well as felony defense and civil
cases. Glisson earned his law degree at the University of
Washington, has worked as a Kitsap County deputy prosecutor, and as
a Kitsap and Snohomish defense attorney before entering private
practice.
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